Sex discrimination in party offices,
where the election is administered by the state
VOLOKH at law.ucla.edu
Wed Jun 9 15:56:59 PDT 2004
Can the logic in this decision possibly be right? Seems
incorrect to me, given J.E.B. v. T.B. and the other state action cases.
(I set aside the question whether the sex discrimination can still pass
muster under post-U.S. v. Virginia intermediate scrutiny; I believe the
Washington Supreme Court once upheld such a classification, in the late
1970s, in the case the court cites.)
Christian D. Tompras attempted to file for election as a St. Louis
County township committeewoman. The director of elections refused to
accept the filing as Tompras was a male. Tompras sued, seeking a
declaratory judgment that section 115.607 and all other laws in chapter
115 that exclude potential candidates from filing for, running for, or
holding elected office based on their gender are unconstitutional. He
also sought a writ of mandamus to be placed on the ballot as a candidate
for township committeewoman. . . .
With respect to section 115.607, Tompras' claim that the statute
violates his constitutional rights requires that the office of political
party committeewoman be a public office. (FN2) It is not. State ex rel.
McCulloch v. Hoskins, 978 S.W.2d 779, 782-84 (Mo. App. 1998).
Section 115.607 incorporates the parties' "equal gender rules." The
distinction between "political party office" and "public office" has
been relied on to resolve voting rights claims made by party members
over delegate selection and party committee qualifications. Political
parties' rights to govern themselves are protected by the first
amendment guarantee of free association. Eu v. San Francisco County
Democratic Central Committee, 489 U.S. 214, (1989). Further, the state's
interest in promoting the associational rights of political parties is
sufficient to overcome an equal protection challenge to the statute. See
Marchioro v. Chaney, 582 P.2d 487 (Wash. 1978) (upholding similar state
statute under state equal rights amendment); Ricard v. Louisiana, 544
So.2d 1310 (La.App. 1989) (upholding similar state statute amended in
response to Democratic Party's adoption of equal division rule and
noting United States Supreme Court deference to membership rules of
political parties). The state has demonstrated an exceedingly persuasive
justification for the equal gender rules. See United States v. Virginia,
518 U.S. 515, (1996). . . .
FN1. Section 115.607.1, RSMo Supp. 2003, provides:
115.607. 1. No person shall be elected or shall serve as a member of a
county committee who is not, for one year next before the person's
election, both a registered voter of and a resident of the county and
the committee district from which the person is elected if such district
shall have been so long established, and if not, then of the district or
districts from which the same shall have been taken. Except as provided
in subsections 2, 3, 4, 5, and 6 of this section, the membership of a
county committee of each established political party shall consist of a
man and a woman elected from each township or ward in the county.
FN2. Article VII, section 10 of the Missouri Constitution, entitled
"Equality of sexes in public service," provides that "[n]o person shall
be disqualified from holding office in this state because of sex."
(Emphasis added.) This provision governs public office.
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